Well, well, well.  OJ Simpson is going to jail.  OJ was convicted of armed robbery and kidnapping this week.  But, his lawyers believe that he did not receive a fair trial because five of the jurors allegedly thought he was guilty of his wife’s murder, of which he was acquitted 13 years ago.

The issue is that jurors do not live in a vacuum.  In our system, jurors are the everyday, ordinary people of our community that decide us guilty or not.  Anyone who was paying any attention at all to the news in 1995 knew that OJ was on trial for murdering his wife and her friend.  They saw the former football star, turned Isotoner spokesman, being chased down the freeway in his white Bronco.  They saw that the bloody glove did not fit his hand.  They heard his attorney, the late Johnny Cochran, tell the jury, “If the glove don’t fit, you must acquit!”

Our great Constitution entitles one accused of a crime the right to be considered innocent until proven guilty (theoretically) and the right to a fair trial.  But pre-trial publicity may chip away at these rights because potential jurors may be influenced by what they hear and see on television or what they read in newspapers or on the internet.  You add a famous (or infamous) personality into the mix, especially one formerly accused of the egregious crime of murder, and defense attorneys must be on heightened alert to any preconceived ideas potential jurors may have.

When a potential juror expresses a prejudice toward the defendant (or, as the case may be, a witness or the law enforcement system, perhaps), it is the job of both the defense and prosecution to tease out those issues.  The judge conducting jury selection must ask those potential jurors if they could put those thoughts aside, whether they could be fair and listen to all of the evidence before they made a decision in this case.  If a potential juror states that they can, and there is no other indication that they could not be fair, you have to take their word for it. 

The defense can make a motion to strike that juror (and for good reason).  The prosecution, of course, argues that the potential juror should be kept because they said they could be fair.  The judge has the final say as to whether or not the potential juror gets to stay.     

OJ was not entitled to a perfect trial or an error-free trial.  He, like everyone else, is entitled to a fair trial.  I suspect that OJ’s current attorneys knew that they would be hard pressed to find 12 people who didn’t know anything about OJ’s murder trial.  I also suspect that they did not think they could find 12 people who did not believe OJ guilty of murder, but got away with it.  The defense attorneys did the right thing by preserving OJ’s right to appeal the trial court’s decision to leave those potential jurors on the jury.  So, probably sometime next year, OJ’s case will be heard by a Nevada appellate court.  And, I’m sure, as every defendant hopes, OJ is hoping the appellate judges will overturn his conviction stating that he did not receive a fair trial.